Case Sureshta Devi v. Om Prakash, 1991
Keywords Hindu Marriage Act, Divorce Mutual Consent, Unilateral consent withdraw, Consent is not irrevocable
Fact This appeal from a decision of the Himachal Pradesh High Court concerns the validity of a decree of dissolution of marriage by mutual consent.
The appellant is the wife of the respondent. They were married on November 21, 1968. On January 8, 1985, both of them came to Hamirpur. The wife was accompanied by her counsel, Shri Madan Rattan. After about an hour’s discussion, they moved a petition under Section 13-B for divorce by mutual consent in the District Court at Hamirpur. On January 9, 1985 the court recorded statements of the parties and left the matter there.
On January 15 1985, the wife filed an application in the court, inter alia, stating that her statement dated January 9, 1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce. Nor they were permitted to accompany her to the court. She said that she would not be party to the petition and prayed for its dismissal.
The District Judge dismissed the petition for divorce. But upon appeal, the High Court has reversed the order of the District Judge and granted a decree for dissolution of the marriage by mutual consent.
High Court has observed that the spouse who has given the consent for petition for divorce can not withdraw it unilaterally.
Issue Whether a party to a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 (‘Act’) can unilaterally withdraw the consent or whether the consent once given is irrevocable?
Contentions and Judgement
Law Point Section 13-B is in pari materia with Section 28 of the Special Marriage Act, 1954. Subsection (1) of Section 13-B requires that the petition for divorce by mutual consent must be presented to the court jointly by both the parties. Similarly, sub-section (2) providing for the motion before the court for hearing of the petition should also be by both the parties. There are three other requirements in sub-section (1).
They have been living separately for a period of one year, They have not been able to live together, and They have mutually agreed that marriage should be dissolved
The ‘living separately’ for a period of one year should be immediately preceding the presentation of the petition. The expression ‘living separately’, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The second requirement that they ‘have not been able to live together’ seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. The Supreme Court held that consent is not irrevocable and may be withdrawn by any party at any time before the decree.
The consent of both the parties should be there when they move the court for a divorce decree. Thus, if one of the parties withdraws consent there can be no decree under this section. This interpretation is in conformity with the objective behind the section which provides for an interregnum to enable the parties to reflect.
The initial joint application does not affect the marriage bond until they move the second motion jointly. This is the legal position of which the parties are aware. There may, therefore, not be the same seriousness in the first application. That is the rationale behind the intervening period and the requirement of “on the motion of both the parties. The consent of both the parties should subsist until the decree is passed. Supreme Court has now held that, consent must continue till the proceedings culminate. Continuing consent, thus, has been held to be a sine qua non.
The appeal was allowed and set aside the decree for dissolution of the marriage.
Case Authority The consent of both the parties should be there when they move the court for a divorce decree. Thus, if one of the parties withdraws consent there can be no decree under this section. Consent is not irrevocable and either party can withdraw consent.
